In December 2014, the Federal Court determined that Canada owed a duty to consult to Mikisew Cree First Nation when it introduced two omnibus bills (Bills C38 and C45) in Parliament that drastically changed key aspects of Canada’s environmental regime that were relied on by Mikisew to protect its Treaty rights.

About the Nation: Mikisew Cree First Nation is in the Heart of the Oil Sands

Mikisew Cree First Nation is based in Fort Chipewyan, Alberta. Their traditional territory is in the heart of the oil sands region in northern Alberta and is subject to some of the largest industrial developments in Canada, with projects being proposed almost daily. They hold constitutionally protected rights under Section 35 of the Constitution Act, 1982, including rights under Treaty 8. These rights are intrinsically tied to the environment in their lands.

About the Case: Mikisew’s Courageous Case for Consultation at the Legislative Stage

In 2012 the federal government made drastic changes to Canada’s environmental legislation through the introduction of Omnibus Bills C-38 and C-45. Among other changes, the Bills drastically reduced federal oversight over the protection of fish and fish habitat, navigable waters, and species at risk. The Bills also reduced the number of projects that would be required to undergo a federal environmental assessment, and the scope and depth of those that are required. The passage of these Bills was the catalyst for the Idle No More Movement and vigorously opposed by First Nations across Canada and environmental groups.

Canada did not consult with Mikisew (or any First Nation) prior to the introduction of the Bills into the Parliament, and gave Mikisew no notice of the proposed changes. Nor was Mikisew consulted during the process in Parliament leading up to the passage of the Bills.

Faced with a drastic reduction in environmental protection Mikisew decided to bring a judicial review against the federal Ministers involved in developing the amendments to the legislation. Mikisew Chief Steve Courtoreille made the announcement when visiting Chief Spence at her hunger strike in Ottawa.

The basis of Mikisew’s challenge was that the federal government has a duty to consult regarding the development of legislation that has the potential to adversely affect Mikisew’s treaty rights. Up to this point, the courts had not determined whether the duty to consult could be attached to legislation or the process of developing draft legislation.

This is the first time a court has squarely addressed the issue of whether the duty to consult attaches to any part of the law making process, a question expressly left open in other cases.

The case boiled down to two issues: (1) whether the Court could intervene in the legislative process by imposing a legal obligation on the Crown to consult; and (2) whether the duty to consult was triggered in this case, and specifically whether Mikisew’s rights and interests were adversely affected by the Bills.

On the first issue, Canada took the position that the court could not review the actions of those in the legislative branch. In the law making context, this is known as the principle of separation of powers between the executive, legislative and judicial branches. On the second issue, Canada took the position there were no potential adverse impacts from the Bills upon which to trigger the duty to consult.

Federal Court Decision: Consultation Required When Bill Introduced

Issue 1 – Whether the Court can intervene in the legislative process

Justice Hughes of the Federal Court found the decisions of the Ministers to develop a legislative proposal was a policy choice that was legislative in nature. The Court found that the process the government establishes for law making requires flexibility and courts cannot constrain such a process. Therefore, courts could not intervene to impose any procedural constraints until the Bills were introduced into Parliament.

Issue 2 – Whether there was a duty to consult

To trigger the duty to consult three criteria must be met: (1) the Crown must have knowledge of the rights; (2) there must be Crown conduct; (3) there must be the potential for adverse impacts from the Crown conduct. In this case the primary issue was whether the Crown conduct (the introduction of the Bills) had the potential to adversely impact Mikisew’s treaty rights.

Justice Hughes of the Federal Court determined that the changes resulting from the omnibus bills had the potential to adversely impact Mikisew. In particular, the Court found the reduction in the monitoring of waterways created a risk of potential harm to the exercise of Mikisew’s rights and reduction in the number of environmental assessments could restrict Canada’s ability to consider the cumulative effects of smaller developments that have the potential of affecting the Mikisew’s treaty rights.

Thus, the Court found that a duty to consult was triggered given the potential adverse impacts to Mikisew. Specifically, the Court determined that the Crown ought to have given the Mikisew notice when each of the Bills was introduced into Parliament together with a reasonable opportunity to make submissions. The Court found that the Crown had breached this duty because no notice was given to Mikisew and no opportunity to make submissions was provided. Instead, the bills “went through Parliament with remarkable speed.”

Remedy: Court Declared the Crown Ought to have Consulted

The Court issued a declaration that the Crown ought to have given Mikisew notice at the time the Bills were introduced, along with a reasonable opportunity to make submissions. The Court reasoned that such a declaration may have an effect on the future continuing obligations to Mikisew under Treaty 8.

However, the Court declined to issue a declaration that the parties must consult now given the Bills have passed into law. The Court also declined to order relief akin to an injunction on the basis it would be impossible to define the scope of the order and unduly fetter the workings of government.

Aboriginal groups now have a clear legal foundation to push for consultation on future bills that may adversely affect them. Canada should now, at a minimum, provide notice to potentially affected aboriginal groups when bills are introduced into Parliament and provide a reasonable opportunity to respond.

The case also raises questions about Canada’s ability to rely on assessments and consultation carried out under the new Canadian Environmental Assessment Act, 2012 for discharging its duty to consult as that process was created without consultation.

JFK Query: Does this Case Advance Justice and Reconciliation for Aboriginal Peoples?

Yes. A declaration by the Court that consultation is triggered upon the introduction of legislation is a giant leap forward in the development of the consultation case law. The Court put to rest Crown arguments that Aboriginal rights and interests are only adversely affected when a shovel is put into the ground, and at the final stage of the decision.

However, the Court could have gone further than it did. In Haida, the Supreme Court made it clear that the honour of the Crown and goals of reconciliation require Crown engagement with Aboriginal people to be easily triggered. The objective is to encourage “talking together for mutual understanding.” The duty to consult helps ensure Aboriginal rights and interests are taken into account in Crown decision making on matters that might adversely impact them.

Finding a duty to consult arose with respect to the development of legislation, but placing the trigger at the introduction stage makes it difficult to incorporate feedback from First Nations. The Court could have found the duty to consult arose at the earliest opportunity in the law making stage. This would have provided an opportunity to meaningful incorporate First Nations views about changes to the legislative proposals. Further, the Court could have granted a remedy with more teeth. While a declaration that Canada has a duty to consult sends a forceful message to Canada, the Court could have required Canada to go back and consult about the changes and stay any further developments until that consultation had occurred.